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57 FLRA No. 66
U.S. Dept. of Treasury, U.S. Customs Service Customs Management Center, Arizona and U.S. Dept. of Treasury, U.S. Customs Service, Office of Internal Affairs Tucson, Arizona and NTEU , Chapter 116, Case Nos. DE-CA-80776 & DE-CA- 80829 (Decided June 29, 2001)
The complaint in Case No. DE-CA-80829 alleged that the Respondents violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute by denying the Charging Party the right to designate a representative of its choice, the Union vice president, to serve as the Union representative of a bargaining unit employee at an examination in connection with an investigation under § 7114(a)(2) of the Statute.
In Case No. DE-CA-80776, the complaint alleged that the Respondents violated § 7116(a)(1) of the Statute by beginning an investigation with respect to conversations between the Union vice president and a bargaining unit employee which allegedly occurred while the Union vice president was serving as the employee's designated representative. The Respondent, questioned the unit employee, and a second unit employee who was also a Union steward, concerning the nature of the Union vice president's communications to the employee being represented during the course of such representation.
The Judge recommended that the consolidated complaint be dismissed. The Authority adopted the Judge's findings and conclusions as modified, and adopted the recommended Order. With regard to the first case, the Authority noted that under § 7114(a)(2)(B) of the Statute, an exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at an examination of an employee in the unit by a representative of the agency in connection with an investigation. The Authority has held, as a general matter, that a union has the right to designate the individual representative for an examination under this section, and that an agency violates § 7116(a)(1) and (8) of the Statute when it refuses to honor the union's designation of its representative. Nevertheless, a union's presumptive right to designate a particular representative for an investigatory examination may be overcome if the agency establishes special circumstances that warrant precluding a particular individual from serving as a representative. In this case, the Authority concluded that the Judge did not err in finding that there was a potential conflict of interest in permitting the Union vice president to represent the employee, sufficient to establish special circumstances justifying the Respondents' refusal to permit her to act in this capacity.
With regard to Case No. DE-CA-80776, the Authority noted that confidential communication between a union representative and an employee made during the course of representation constitutes protected activity under the Statute. An agency may not interfere with the confidentiality of such communication unless the right to maintain the confidentiality of the conversations has been waived or some overriding need for the information was established. The Authority concluded that the Judge did not err in finding that the Respondents established a sufficient need to justify the two questions asked by the special agent.